OPINION OF ADVOCATE GENERAL
COLLINS
delivered on 4 May 2023 (1)
Case C‑148/22
OP
v
Commune d’Ans
(Request for a preliminary ruling from the tribunal du travail de Liège (Labour Court, Liège, Belgium))
(Reference for a preliminary ruling – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Prohibition of discrimination on the grounds of religion or belief – Article 2(2)(a) – Article 2(2)(b)(i) – Article 2(5) – Article 4(1) – Terms of employment of a public body prohibiting its employees from wearing visible signs of political, philosophical or religious belief in the workplace – Female worker prohibited from wearing an Islamic headscarf – Principle of State neutrality)
Introduction
1. In several European countries, the issue of the wearing of religious symbols in public places, educational establishments and the workplace is regularly the subject of intense debate in civil society, among politicians and in the media. A particularly controversial question is whether an employer has the right to impose restrictions in this area on employees in the performance of their duties. This is a sensitive question which requires the fundamental right to freedom of religion, the corollary of which is the prohibition of any discrimination based on religion, to be reconciled with other freedoms and principles, such as the freedom to conduct a business, the principles of secularism, neutrality and impartiality, and the protection of the rights and freedoms of others.
2. In recent years, the Court of Justice has on several occasions been called upon to examine, from the perspective of the prohibition of ‘discrimination on the grounds of religion or belief’ within the meaning of Articles 1 and 2 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, (2) cases involving female Muslim workers in the private sector who were prohibited by their employers from wearing the Islamic headscarf (3) in the workplace. (4)
3. This request for a preliminary ruling from the tribunal du travail de Liège (Labour Court, Liège, Belgium) follows on from those cases, albeit with the specific feature that, on this occasion, the prohibition on wearing religious signs in the workplace was imposed not by a private employer but by a public employer, in this case a municipal authority. This is the first time that the Court has been called upon to give a ruling in such circumstances, which raises in particular the question whether the nature and particular features of the public service and the context specific to each of the Member States require, in the present case, a different solution to that adopted in those previous cases.
Legal framework
European Union law
4. According to Article 1 thereof, the purpose of Directive 2000/78 is to lay down a general framework for combating discrimination on the grounds of religion or belief, (5) disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
5. Article 2(1) of Directive 2000/78 states that ‘the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1’ of that directive.
6. Article 2(2) of Directive 2000/78 provides that, for the purposes of applying Article 2(1) of that directive:
‘(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary …’
7. According to Article 2(5) thereof, Directive 2000/78 is to be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
8. The scope of Directive 2000/78 is defined in Article 3 thereof, which provides, in paragraph 1 of that article, inter alia:
‘Within the limits of the areas of competence conferred on the [European Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
…
(c) employment and working conditions, including dismissals and pay;
…’
9. Article 4 of that directive, entitled ‘Occupational requirements’, provides in paragraph 1 thereof:
‘Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
Belgian law
10. The loi du 10 mai 2007 tendant à lutter contre certaines formes de discrimination (Law of 10 May 2007 to combat certain forms of discrimination), (6) in the version applicable to the dispute in the main proceedings (‘the General Anti-discrimination Law’), is intended to transpose Directive 2000/78 into Belgian law.
11. According to Article 3 thereof, the purpose of the General Anti-discrimination Law is to create, in the fields referred to in Article 5 thereof, a general framework for combating discrimination on the grounds of age, sexual orientation, civil status, birth, financial situation, religious or philosophical belief, political belief, language, current or future state of health, disability, physical or genetic characteristics, or social origin.
12. Article 4 of that law, which concerns definitions, states:
‘For the purposes of this Law, the following definitions shall apply:
(1) employment relationships: relationships which cover, inter alia, employment, conditions for access to employment, working conditions and rules on dismissal:
– in both the public and private sectors;
…
(4) protected criteria: age, sexual orientation, civil status, birth, financial situation, religious or philosophical belief, political belief, language, current or future state of health, disability, physical or genetic characteristics, social origin;
…
(6) direct distinction: a situation which arises where, on the basis of one of the protected criteria, a person is treated less favourably than another person is, has been, or would be treated in a comparable situation;
(7) direct discrimination: a direct distinction, based on one of the protected criteria, which cannot be justified on the basis of the provisions of Title II;
(8) indirect distinction: a situation which arises where an apparently neutral provision, criterion or practice would put persons characterised by one of the protected criteria at a particular disadvantage compared with other persons;
(9) indirect discrimination: an indirect distinction, based on one of the protected criteria, which cannot be justified on the basis of the provisions of Title II;
…’
13. Article 5(1) of the General Anti-discrimination Law provides that, with the exception of matters falling within the competence of the Communities or the Regions, that law is to apply to all persons, as regards both the public and private sectors, including public bodies, in relation to, inter alia, employment relationships.
14. Article 7 of that law (7) states:
‘Any direct distinction based on one of the protected criteria shall constitute direct discrimination, unless that direct distinction is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’
15. Article 8 of the General Anti-discrimination Law provides:
‘1. By way of derogation from Article 7 and without prejudice to the other provisions of this Title, a direct distinction based on age, sexual orientation, religious or philosophical belief, or disability, in the fields referred to in points (4), (5) and (7) of Article 5(1) can be justified only by genuine and determining occupational requirements.
2. A genuine and determining occupational requirement can exist only where:
– a particular characteristic related to age, sexual orientation, religious or philosophical belief or disability is genuine and determining by reason of the nature of the specific occupational activities concerned or of the context in which they are carried out, and
– the requirement is based on a legitimate aim and is proportionate to that aim.
3. It is for the court to ascertain, on a case-by-case basis, whether a given characteristic constitutes a genuine and determining occupational requirement.
…’
16. Article 9 of that law provides:
‘Any indirect distinction based on one of the protected criteria shall constitute indirect discrimination,
– unless the apparently neutral provision, criterion or practice on which that indirect distinction is based is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary;
…’
17. According to Article 11(1) of the General Anti-discrimination Law, ‘a direct or indirect distinction based on one of the protected criteria shall not constitute any form of discrimination prohibited by this Law where that direct or indirect distinction is imposed by or under any law’.
The dispute in the main proceedings and the questions referred for a preliminary ruling
18. On 11 April 2016, OP, a lawyer by training, was recruited on a fixed-term contract by the municipal authority of Ans (Belgium) (‘the municipal authority’) as a member of the contract staff. On 11 October 2016, she was promoted to the position of head of office and her contract was converted into a contract of indefinite duration. She is responsible for handling the municipal authority’s public contracts and primarily performs her duties without being in contact with the public, that is to say, to borrow the expression used by the referring court, ‘in the back office’. (8)
19. On 8 February 2021, OP, who is a Muslim, officially informed the municipal authority that she intended to wear an Islamic headscarf in the workplace from 22 February 2021.
20. On 18 February 2021, the municipal authority adopted a first decision prohibiting OP from wearing ‘signs of conviction’ (9) in the performance of her occupational activities ‘until general regulations are adopted on the wearing of signs of conviction within the administration’ (10)
21. On 26 February 2021, after hearing OP, who was assisted by her counsel, the municipal authority adopted a second decision, which replaced the first decision and confirmed the prohibition contained therein.
22. On 29 March 2021, the municipal authority amended Article 9 of its terms of employment. In the new version resulting from that amendment, that article, now entitled ‘Requirement of neutrality and duty of discretion’, provides, inter alia: (11)
‘Workers have freedom of expression in accordance with the principle of neutrality, their duty of discretion and their duty to act in good faith.
Workers are required to observe the principle of neutrality, which means that they must refrain from any form of proselytising and that they are prohibited from wearing any overt sign which might reveal their ideological or philosophical affiliation or political or religious beliefs. This rule applies both to their contacts with the public and to their working relationships with hierarchical superiors and colleagues.
…’
23. OP subsequently brought several sets of proceedings before the national courts seeking, inter alia, a declaration that the municipal authority had infringed her freedom of religion, and the suspension and annulment of the municipal authority’s decisions of 18 and 26 February 2021.
24. On 26 May 2021, OP brought before the referring court, the tribunal du travail de Liège (Labour Court, Liège), an action for an injunction (12) seeking, inter alia, a finding that she had been discriminated against on the grounds of religion and gender, and a declaration that the decisions of the municipal authority of 18 and 26 February 2021 and the rule at issue in the main proceedings were null and void.
25. The referring court considers that the fact that OP was prohibited by the municipal authority, in those decisions, from wearing an Islamic headscarf constitutes ‘direct discrimination based on a direct distinction arising on the basis of the protected criterion of “religious or philosophical belief”’. According to the referring court, although it may be accepted that there was an unwritten rule within the municipal administration prohibiting the wearing of any ‘very overt, even ostentatious’ sign of conviction, such as the Islamic headscarf, it is nonetheless clear from several photographs produced by OP that the wearing of discreet signs of conviction was tolerated. It takes the view that that direct distinction is not justified by genuine and determining occupational requirements, since OP primarily carries out her duties without being in contact with users of the public service. Nor, according to the referring court, is it objectively justified by a legitimate aim the means of implementation of which are appropriate and necessary.
26. As regards the rule at issue in the main proceedings, the referring court notes that it is ‘collective in scope’, that it covers any overt sign of conviction and that, in adopting it, the municipal authority chose ‘exclusive neutrality’. (13) The referring court considers that that rule does not constitute direct discrimination on the grounds of religion or belief, but seemingly indirect discrimination based on those criteria. It observes, in particular, that unless the view were to be taken that ‘exclusive neutrality is an essential and clear principle of the rule of law [in Belgium] and must be strictly observed by all’, the distinction which arises does not appear to be justified by a legitimate aim, since OP primarily carries out her duties without being in contact with users of the public service. Moreover, in the referring court’s view, it appears that the municipal authority applies neutrality inconsistently, that is to say, exclusive neutrality as regards OP and more inclusive neutrality as regards her colleagues with other philosophical or religious beliefs. Accordingly, the referring court has, on a provisional basis, permitted OP to wear a visible sign of conviction, except when she is in contact with users of the public service or when she is exercising positions of authority.
27. The referring court is uncertain whether the imposition of ‘exclusive and absolute’ neutrality on all the employees of a public service, even those who have no direct contact with users of the public service, constitutes a legitimate aim and whether the means used to achieve that aim, that is to say, the prohibition on the wearing of any signs of conviction, are appropriate and necessary.
28. It was in those circumstances that the tribunal du travail de Liège (Labour Court, Liège) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Can Article 2(2)(a) and (b) of [Directive 2000/78] be interpreted as permitting a public administration to put in place an entirely neutral administrative environment and thus to prohibit all members of staff from wearing [signs] of conviction, whether or not they are in direct contact with the public?
(2) Can Article 2(2)(a) and (b) of [Directive 2000/78] be interpreted as permitting a public administration to put in place an entirely neutral administrative environment and thus to prohibit all members of staff from wearing [signs] of conviction, whether or not they are in direct contact with the public, even if that neutral prohibition appears mostly to affect women, and may thus constitute disguised discrimination on [the] grounds of gender?’
29. OP, the municipal authority, the Belgian, French and Swedish Governments and the European Commission submitted written observations. On 31 January 2023, a hearing was held in which OP, the municipal authority, the French Government and the Commission participated and during which the latter parties presented oral argument and replied to the questions put by the Court.
Analysis
30. I shall first of all examine the second question referred, the admissibility of which the French Government disputes and the relevance of which the majority of the parties to the proceedings challenge.
The second question
31. By its second question, the referring court seeks to ascertain, in essence, whether the rule at issue in the main proceedings can be regarded as consistent with Article 2(2)(a) and (b) of Directive 2000/78 in so far as the prohibition which it lays down appears to affect women more than men and may therefore constitute indirect discrimination on the grounds of gender.
32. According to settled case-law, the procedure provided for in Article 267 TFEU is an instrument of cooperation between the Court of Justice and the national courts, by means of which the Court provides the national courts with the points of interpretation of EU law which they need in order to decide the disputes before them. (14)
33. The need to arrive at an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking, or at the very least to explain the factual circumstances on which those questions are based. The Court is empowered to give rulings on the interpretation of EU legislation only on the basis of the facts which the national court puts before it. (15)
34. In addition, the Court stresses that it is important for the referring court to set out the precise reasons why it was unsure as to the correct interpretation of EU law and why it considered it necessary to refer questions to the Court for a preliminary ruling. It is essential that, in the order for reference itself, the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it. (16)
35. In the present case, I share the French Government’s view that, as regards the second question referred, the order for reference does not meet those requirements and that that question is therefore inadmissible.
36. First, the order for reference does not contain any factual evidence which makes it possible to assess whether there is any indirect discrimination on the grounds of gender in the present case.
37. Second, the referring court does not explain the reasons why it was unsure as to the correct interpretation of the provisions of EU law referred to in its second question and as to the link it establishes in relation to such discrimination between those provisions and the proceedings pending before it. It is apparent from the order for reference that the referring court relied, in that regard, solely on certain arguments put forward by OP, without providing any further details. The system established by Article 267 TFEU does not constitute a right of action available to the parties to a case pending before a national court. The mere fact that a party contends that the dispute gives rise to a question concerning the interpretation of EU law does not compel the court concerned to consider that such a question has been raised within the meaning of that article. (17)
38. In any event, it may be observed that, as all the parties to the proceedings, with the exception of the municipal authority, state in their written observations, discrimination on the grounds of gender does not fall within the scope of Directive 2000/78, which is the only EU law measure to which the second question refers. Accordingly, it is not necessary to examine whether there is such discrimination in the present case. (18)
39. In the light of the foregoing, I propose that the Court find that the second question referred is inadmissible and that, in any event, there is no need to examine it.
The first question
Preliminary observations
40. By its first question, the referring court seeks to ascertain, in essence, whether the rule at issue in the main proceedings gives rise to direct or indirect discrimination on the grounds of religion or belief, contrary to Article 2(2)(a) and (b) of Directive 2000/78. As formulated, the prohibition which that rule lays down on the wearing of signs of conviction at work applies generally and absolutely to the municipal authority’s employees, that is to say, irrespective of both the nature of their duties (exercising authority or simply following instructions) and the context in which those duties are carried out (whether or not in direct contact with the public). It is important to point out that the referring court does not ask the Court to assess whether that rule of general application is compatible with the abovementioned provisions of Directive 2000/78 by making a distinction on the basis of the above circumstances. What the referring court seeks to ascertain is whether that directive can be interpreted as permitting a public body to put in place an ‘entirely neutral administrative environment’ and thus to ‘prohibit all members of staff [from wearing such signs,] whether or not they are in direct contact with the public’.
41. It is useful, in my view, to recall a number of points which may be regarded as having been established according to the case-law and which are relevant for the purposes of the present case.
42. First of all, it is clear that the rule at issue in the main proceedings falls within the scope of Directive 2000/78. As is clear from Article 3(1) thereof, that directive applies to both the public sector and the private sector. A rule prohibiting the wearing of visible signs of, inter alia, philosophical or religious belief in the context of an occupational activity must be regarded as coming within the scope of ‘employment and working conditions’ within the meaning of Article 3(1)(c) of that directive.
43. Next, the concept of ‘religion’ in Article 1 of Directive 2000/78 is to be interpreted as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public. (19) The wearing of the Islamic headscarf by a woman is an expression of her adherence to the Muslim faith. In the present case, it is clear from the referring court’s account of the facts that OP, whose sincerity of belief cannot be called into question, is in that precise situation.
44. Lastly, it should be recalled that Directive 2000/78 merely establishes a general framework for equal treatment in employment and occupation. It leaves a margin of discretion to the Member States, which takes account of the diversity of their approaches towards the place accorded to religion or belief within their respective systems. That directive therefore allows account to be taken of the specific context of each Member State and allows each Member State a margin of discretion in achieving the necessary reconciliation of the different rights and interests concerned, in order to ensure a fair balance between them. (20)
45. In keeping with the considerations set out in the preceding point, I share the French Government’s view that that discretion is particularly broad where the principles at stake may involve the national identities of the Member States for the purposes of Article 4(2) TEU. (21) According to that provision, the European Union has an obligation to respect the national identities of its Member States, inherent in their fundamental structures, political and constitutional, which, according to Advocate General Kokott, may be understood as an obligation to respect the plurality of views and, therefore, the differences that characterise each Member State. (22) Like Advocate General Emiliou, (23) I consider that it is not for the European Union to determine, for each Member State, the elements that constitute that kernel of national identity to which Article 4(2) TEU refers. Member States enjoy significant discretion in that respect, which is not, however, unlimited. (24) In particular, the conception of national identity a Member State invokes must be consistent with the founding values of the European Union (Article 2 TEU). (25)
46. In that regard, without prejudice, at this stage, to the question whether that is the case here, I also agree with the French Government that the imposition of restrictions on the freedom of public sector employees to manifest their political, philosophical or religious beliefs in the performance of their duties may be of such importance in some Member States that it forms part of their national identities, inherent in their fundamental structures, political and constitutional.
47. In that context, I think it is also useful to point out that national identity makes it possible, inter alia, to ‘limit the impact of EU law in areas considered essential for the Member States’ (26) and that, accordingly, it must be duly taken into account by the EU institutions, bodies, offices and agencies when interpreting and applying EU law. (27)
48. My answer to the first question will be structured as follows. First of all, I shall examine whether the rule at issue in the main proceedings is capable of constituting direct discrimination on the grounds of religion or belief. Next, I shall analyse whether that rule is capable of giving rise to indirect discrimination on those grounds. Lastly, although the order for reference did not expressly raise the issue, I shall consider the possibility of applying certain derogations from the prohibition of such discrimination provided for by Directive 2000/78 in this case.
The existence of direct discrimination
49. The referring court considers, with reference to the G4S Secure Solutions judgment, that the rule at issue in the main proceedings does not constitute direct discrimination on the grounds of religion or belief. It nevertheless asks the Court to rule on that point.
50. In the case which gave rise to that judgment, the Court was asked whether an internal rule of a private undertaking prohibiting, in a general way, the visible wearing of any political, philosophical or religious sign in the workplace constitutes direct discrimination on the grounds of religion or belief for the purposes of Article 2(2)(a) of Directive 2000/78. (28) In that judgment, the Court held that such a rule does not introduce discrimination of that sort provided that it covers any manifestation of such beliefs without distinction and treats all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs. (29)
51. The Court confirmed that approach in the WABE and MH Müller Handel judgment and in the SCRL judgment. It added that, since every person may have a religion or religious, philosophical or spiritual belief, such a rule, provided that it is applied in a general and undifferentiated way, does not establish a difference in treatment based on a criterion that is inextricably linked to religion or to those beliefs. (30) In the WABE and MH Müller Handel judgment, the Court also noted that the fact that some workers observe religious precepts that require certain clothing to be worn is not such as to call those findings into question. According to the Court, while it is true that an internal rule requiring dress neutrality is capable of causing inconvenience for those workers, that nevertheless has no bearing on the finding that that rule does not, in principle, establish a difference of treatment between workers based on a criterion that is inextricably linked to religion or belief. (31)
52. Like the municipal authority and the French Government, I entirely concur with the approach adopted by the Court in those judgments and see no reason to depart from it in the present case, which, as already noted, concerns the public sector and not the private sector.
53. Since the internal rule at issue in the main proceedings covers any manifestation of belief, including religious belief, without distinction, it must be regarded as treating all the municipal authority’s employees in the same way by requiring them, in a general and undifferentiated way, to dress neutrally, which precludes wearing such signs. Such a rule therefore does not constitute direct discrimination on the grounds of religion or belief for the purposes of Article 2(2)(a) of Directive 2000/78.
54. It would nevertheless be necessary to find that such discrimination exists were the rule at issue in the main proceedings to be understood to cover only the wearing of conspicuous, large-scale signs of, inter alia, philosophical or religious belief which, in my view, could include the Islamic headscarf. As the Court has already held, an internal rule of an undertaking that prohibits wearing such conspicuous signs only may constitute direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78 where that criterion is inextricably linked to one or more specific religions or beliefs. (32) The rule at issue in the main proceedings covers any ‘overt’ sign – a term which, correctly in my view, the referring court equates with ‘visible’ – and therefore does not appear to be limited to conspicuous, large-scale signs, a matter which it is for that court to ascertain.
55. It is also for the referring court to ascertain whether, in practice, the municipal authority truly applies the rule at issue in the main proceedings in a general and undifferentiated way and, in particular, whether it treats OP in the same way as any other employee who has manifested his or her religion or philosophical or religious beliefs by wearing visible signs of conviction. I observe that, in the order for reference, the referring court states that the municipal authority ‘applies neutrality variably in space and time: exclusive as regards OP and less exclusive, or more inclusive, in respect of her colleagues with other beliefs’, and that OP has provided ‘sufficient evidence’ in that connection. In their written observations, OP and the Swedish Government argue that there are therefore grounds to conclude that there is direct discrimination in the present case.
56. In the light of those considerations, I propose that the first part of the Court’s answer to the first question referred should be that Article 2(2)(a) of Directive 2000/78 must be interpreted to mean that a provision of a public body’s terms of employment which prohibits employees from wearing any visible sign of political, philosophical or religious belief in the workplace, with the aim of putting in place an entirely neutral administrative environment, does not constitute, with regard to employees who intend to exercise their freedom of religion and conscience through the visible wearing of a sign or an item of clothing with religious connotations, direct discrimination on the grounds of religion or belief, for the purposes of that directive, provided that that provision is applied in a general and undifferentiated way.
The existence of indirect discrimination
57. The referring court considers that the rule at issue in the main proceedings gives rise to indirect discrimination on the grounds of religion or belief.
58. It is settled case-law that an internal rule such as that at issue in the main proceedings may constitute, for the purposes of Article 2(2)(b) of Directive 2000/78, a difference in treatment that is indirectly based on religion or belief, if it is established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. (33)
59. In my view, and as the Swedish Government and the Commission have argued, while the rule at issue in the main proceedings is apparently neutral, it is possible that, in practice, it affects, more specifically, the municipal authority’s employees who observe religious precepts requiring them to wear certain clothing, in particular female workers who wear a headscarf on account of their Muslim faith. In that regard, I agree with the observation made by Advocate General Sharpston in her Opinion in Bougnaoui and ADDH, according to which those employees, ‘if they are to remain true to their religious convictions, … have no option but to infringe the rule and to suffer the consequences’. (34) It is ultimately for the referring court to verify that point in the light of the facts before it. (35)
60. Under Article 2(2)(b)(i) of Directive 2000/78, such a difference of treatment would nonetheless not constitute indirect discrimination, within the meaning of Article 2(2)(b) of that directive, were it objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. Those conditions must be interpreted strictly. (36)
61. Once again, it is for the referring court to determine whether, and to what extent, the rule at issue in the main proceedings complies with those conditions. (37) However, the Court of Justice, which is called upon to provide answers of use to that court to enable it to give judgment, may provide guidance based on the documents and on the written observations before it. (38) The following analysis endeavours to do just that.
– The existence of a legitimate aim
62. As regards the condition relating to the existence of a legitimate aim, (39) it is clear from the order for reference and from the municipal authority’s written and oral observations that that authority justifies prohibiting its employees from wearing signs of political, philosophical or religious belief in the performance of their duties by invoking the principle of State (or public service) neutrality (40) and its desire to put in place an ‘entirely neutral administrative environment’. (41)
63. Like most of the parties to the proceedings, I consider that the desire of a public body, such as the municipal authority, to pursue a policy of political, philosophical or religious neutrality is, in absolute terms, capable of constituting a legitimate aim.
64. It is true that, unlike in the Court’s rulings in the G4S Secure Solutions judgment, in the WABE and MH Müller Handel judgment and in the SCRL judgment, (42) in a case such as this, which concerns the public, and not the private, sector, the desire of a public-sector employer to pursue such a policy cannot relate to the freedom to conduct a business that Article 16 of the Charter of Fundamental Rights of the European Union recognises. (43) In my view, it could, more generally, be grounded upon the need to protect the rights and freedoms of others, which entails, in particular, respect for all the philosophical or religious beliefs of citizens and the non-discriminatory and equal treatment of users of the public service. As the Belgian Government points out in its written observations, reproducing a passage from a judgment of the Conseil d’État (Council of State, Belgium) of 27 March 2013, in a democratic State governed by the rule of law, the public authority must be neutral ‘because it is the authority of all citizens and for all citizens and must, in principle, treat them in the same way without discrimination based on their religion, belief or preference for a community or party’. (44)
– The existence of an objective justification
65. It is necessary to examine whether the desire of the public-sector employer, in the present case the municipal authority, to pursue a policy of neutrality is capable of objectively justifying a potential difference of treatment indirectly based on religion or belief. In that regard, the case-law of the Court, developed in relation to the private sector, (45) according to which such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate, seems to me to be relevant.
66. It is clear from the Commission’s written observations and from the oral exchanges at the hearing that, in Belgium, different, or even conflicting, conceptions of the principle of State neutrality coexist, that is to say ‘inclusive neutrality’, ‘exclusive neutrality’ and intermediate conceptions. The inclusive conception of neutrality is based on the idea that a public employee’s appearance must be separated from the way in which he or she provides the public service. According to that conception, it is the neutrality of the employee’s actions, and not the neutrality of his or her appearance, which is important, such that he or she cannot be prohibited from wearing signs of, inter alia, philosophical or religious belief. The exclusive conception of neutrality, by contrast, rests on the premiss that both the public employee’s actions and his or her appearance must be strictly neutral. According to that conception, all public employees must be prohibited from wearing such signs at work, regardless of the nature of their duties and the context in which they carry out those duties. There are also intermediate conceptions of neutrality situated midway between these two conceptions. These consist, for example, in restricting the application of such a prohibition to employees who are in direct contact with the public or to employees who are exercising positions of authority, as opposed to simply carrying out instructions.
67. In the present case, as the referring court expressly points out, the municipal authority, in adopting the rule at issue in the main proceedings, deliberately opted for ‘exclusive neutrality’, with a view to putting in place an ‘entirely neutral administrative environment’. (46) It is clear from the order for reference that, for the purpose of justifying that objective, the municipal authority merely refers to an ‘overriding social need’, the existence of which it seeks to demonstrate by reference to laconic and abstract statements only. (47)
68. In my view, the referring court should assess from two perspectives, which are alternatives and not necessarily cumulative, whether the municipal authority, on which the burden of proof lies in that regard, (48) demonstrates to the requisite legal standard that its choice of an exclusive conception of the principle of State neutrality responds to a genuine need.
69. In the first place, it is necessary to examine that question from a legal perspective. In that regard, since it is not for the Court to take a position on national law or, a fortiori, to adjudicate between different interpretations of a concept or principle of national law and determine which of those interpretations is correct, I shall limit the following comments to certain considerations which are apparent from the file and from the submissions made at the hearing.
70. I accordingly note that none of the parties to the proceedings referred to any national legislation which requires the municipal authority to adopt an exclusive conception of neutrality and, consequently, to impose on its employees an absolute prohibition on wearing signs of, inter alia, philosophical or religious belief in the performance of their duties.
71. It also appears that the principle of State neutrality, even though it is generally described as a constitutional principle, is not enshrined as such in the Belgian Constitution, with the exception of the very specific field of education, and, above all, that the scope and extent of that principle are not clearly and uniformly defined in the Belgian legal order. This leads me to think that that principle does not in itself require that public employees be prohibited from wearing signs of, inter alia, philosophical or religious belief in the workplace, nor does it exclude the possibility of such a prohibition.
72. The foregoing observation also leads me to consider that, contrary to what the French Government maintains, Article 4(2) TEU has no particular relevance in the present case. The apparent absence in Belgium of any constitutional definition of the scope and content of the principle of State neutrality, together with the fact that the Belgian Government neither proposed an answer to the first question referred, leaving that issue over to the Court’s discretion, nor attended the hearing, seems to indicate that that principle, at least in its exclusive manifestation, is not part of the Kingdom of Belgium’s national identity within the meaning of that article.
73. In the second place, it should be ascertained whether the facts justify the municipal authority’s choice to apply an exclusive conception of State neutrality. In that regard, I note both that the Commission states in its written observations that that conception is not shared by all Belgian municipal authorities, citing as examples the cities of Ghent (Belgium) and Mechelen (Belgium), which unconditionally permit the staff of their administration to wear signs indicating philosophical or religious belief in the workplace, and that no party contradicted the Commission on that point at the hearing. It is conceivable that such a solution could not apply to the municipal authority on account, for example, of the possible existence, on its territory, of strong community tensions or serious social problems or, within the actual administration, of proselytising activities or a specific risk of conflicts between employees linked to such beliefs. I would merely repeat that it is for the municipal authority to provide specific evidence of such factors and for the referring court to determine their relevance.
– The appropriateness and necessity of the means of implementing the legitimate aim
74. If, in the light of the guidance given in the preceding points of the present Opinion, the referring court concludes that the municipal authority’s desire to put in place an ‘entirely neutral administrative environment’ by pursuing a policy of exclusive neutrality is capable of objectively justifying a difference of treatment indirectly based on religion or belief, that court must still assess whether the prohibition that the rule at issue in the main proceedings laid down is appropriate and necessary to achieve that aim.
75. With regard to the first of those requirements, it seems to me indisputable that if all of the municipal authority’s employees were to carry out their duties without displaying visible signs of, inter alia, philosophical or religious belief, this would contribute to implementing the policy of exclusive neutrality which the municipal authority has chosen to pursue. However, it remains to be examined whether that policy is genuinely applied in a consistent and systematic manner. (49) As I earlier observed in point 55 of the present Opinion, the referring court has doubts in that regard. Were those doubts to be well founded, the rule at issue in the main proceedings would not only fail to fulfil the requirement as to the appropriateness of the means of implementing the legitimate aim, but would also constitute direct discrimination on the grounds of religion or belief.
76. The second requirement entails an assessment of whether the prohibition laid down by the rule at issue in the main proceedings is limited to ‘what is strictly necessary’. (50) In that regard, I would point out that that prohibition applies generally and absolutely, that is to say, irrespective of both the nature of the duties carried out by the employee and the context in which those duties are carried out, and that the Court is asked to assess the compatibility of that prohibition, considered as a whole, with Directive 2000/78. (51) It is therefore the prohibition as thus conceived to which the referring court must apply the necessity test. While seeking to strike a fair balance between the interests involved, for the purposes of such an exercise account could be taken of the factual considerations set out in point 73 of the present Opinion.
77. In the light of the foregoing, I propose that the second part of the Court’s answer to the first question referred should be that Article 2(2)(b) of Directive 2000/78 must be interpreted to mean that a difference of treatment indirectly based on religion or belief arising from a provision of a public body’s terms of employment which prohibits employees from wearing any visible sign of political, philosophical or religious belief in the workplace may be justified by that body’s desire to put in place an entirely neutral administrative environment, provided, first, that that desire responds to a genuine need on the part of that body, which it is for that body to demonstrate; second, that that difference of treatment is appropriate for the purpose of ensuring that that desire is properly realised; and, third, that that prohibition is limited to what is strictly necessary.
The possibility of derogations
78. Should one conclude that the rule at issue in the main proceedings constitutes direct or indirect discrimination on the grounds of religion or belief, it may escape the prohibition Directive 2000/78 lays down if one of the derogations that directive provides for applies, notably those set out in Article 2(5) and Article 4(1) thereof.
79. It is true that the referring court does not expressly seek guidance from the Court regarding those two derogations, which, moreover, the municipal authority does not appear to have relied upon as such. OP and the French Government nevertheless raised the application of Article 4(1) of Directive 2000/78 in their written observations and the application of Article 2(5) thereof was discussed at the hearing. In order to provide the referring court with a complete answer, I shall examine below the possible application of those provisions in the present case.
– Article 2(5) of Directive 2000/78
80. Article 2(5) of Directive 2000/78, which establishes an exception to the principle prohibiting discrimination, must be interpreted strictly. (52)
81. The Court has held that the concept of ‘measures laid down by national law’ within the meaning of that provision is not limited solely to measures resulting from an act adopted following a legislative procedure, but also includes measures introduced on the basis of a sufficiently precise rule to that effect. (53)
82. In the present case, were it to be concluded that there is a difference of treatment, that difference would be the result of the prohibition laid down by the rule at issue in the main proceedings.
83. However, as the Commission stated at the hearing, that rule clearly does not constitute an act adopted following a legislative procedure, that is to say, a law in the formal sense.
84. Moreover, although it is ultimately for the referring court to resolve this matter, it also does not appear, prima facie, that the prohibition at issue was introduced ‘on the basis of a sufficiently precise rule to that effect’ within the meaning of the case-law cited in point 81 of the present Opinion. I note that none of the parties to the proceedings has been able to identify any national legislation or rules that could be seen to authorise a public body, such as the municipal authority, to adopt rules ‘which, in a democratic society, are necessary … for the protection of the rights and freedoms of others’. The fact, relied on by the municipal authority at the hearing, that it has, under the Belgian Constitution, the power to regulate any matter of municipal interest, subject to intervention on the part of the supervisory authority, cannot, in my view, be equated with such an authorisation.
85. Accordingly, subject to verification by the referring court, I am inclined to conclude that the derogation provided for in Article 2(5) of Directive 2000/78 is inapplicable to the present case.
– Article 4(1) of Directive 2000/78
86. According to the French Government, the rule at issue in the main proceedings may be justified on the basis of Article 4(1) of Directive 2000/78. It contends that public-sector employees are bound, by reason of the nature of their particular occupational activities, by a strict duty of neutrality which gives rise to the genuine and determining occupational requirement that they are prohibited from expressing their political, ideological, philosophical or religious beliefs.
87. OP contests that interpretation, arguing in essence that, for the purposes of applying that provision, account must be taken of the nature of the occupational activities concerned and of the context in which they are carried out. She submits that, in the present case, her activities consist in dealing with legal issues relating to the municipal authority’s public contracts and do not involve contact with the public. According to OP, there can therefore be no question of a genuine and determining occupational requirement in the present case.
88. I would point out that, where the conditions of Article 4(1) of Directive 2000/78, which I shall examine in turn below, are met, a difference of treatment which would otherwise constitute discrimination, whether direct or indirect, falls outside the scope of that directive. I would also point out that, in so far as it allows a derogation from the principle of non-discrimination, that provision, read in the light of recital 23 of that directive, which refers to ‘very limited circumstances’ in which such a difference of treatment may be justified, must be interpreted strictly. (54)
89. In the first place, it is for the Member States to ‘provide’, where appropriate, that a difference of treatment based on a characteristic related to any of the grounds referred to in Article 1 of Directive 2000/78 does not constitute discrimination. In the present case, the Kingdom of Belgium appears to have made use of that option, at least concerning cases where there is a direct difference of treatment, by adopting Article 8 of the General Anti-discrimination Law, which matter is for the referring court to ascertain.
90. In the second place, according to Article 4(1) of Directive 2000/78, in order for a difference of treatment to escape classification as discrimination, it must be ‘based on a characteristic related to any of the grounds referred to in Article 1 [of that directive]’. The Court has stated in that regard that what must constitute a genuine requirement is not the ground on which the difference of treatment is based but a characteristic related to that ground. (55) In my view, that is indeed the situation in the present case. The fact that the municipal authority’s employees are prohibited from wearing signs which may reveal their adherence to, inter alia, a particular religion, such as the Islamic headscarf, which is a manifestation of the Muslim faith, constitutes a characteristic related to religion.
91. In the third place, the characteristic concerned must constitute ‘a genuine and determining occupational requirement’, and that requirement must be ‘objectively’ (56) dictated by the nature of the occupational activities concerned or of the context in which they are carried out. In that regard, I fully concur with the position of Advocate General Sharpston, who considers that Article 4(1) of Directive 2000/78 must be applied in a way that is specific and cannot be used to justify a blanket exception for all the activities that a given employee may potentially engage in. (57) As regards the specific situation in the present case, however, I find it difficult to see how OP’s wearing of the Islamic headscarf would in any way prevent her from fully carrying out her duties as a lawyer employed by a municipal administration. The order for reference does not, moreover, contain any such indication. This is a fortiori the case since, in other Belgian municipal authorities, the same tasks are carried out by employees without any restrictions being imposed on them as regards wearing items of clothing, whether or not they are in direct contact with the public.
92. In the fourth place, in so far as it is necessary to examine the condition that the objective pursued must be legitimate and the requirement proportionate, in the light of the foregoing I refer to my analysis in points 62 to 64 and 76 of the present Opinion.
93. I am therefore of the view, subject to verification by the referring court, that the derogation provided for in Article 4(1) of Directive 2000/78 is likewise inapplicable in the present case.
Conclusion
94. In the light of the foregoing considerations, I propose that the Court answer as follows the questions referred for a preliminary ruling by the tribunal du travail de Liège (Labour Court, Liège, Belgium):
(1) Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
must be interpreted to mean that a provision of a public body’s terms of employment which prohibits employees from wearing any visible sign of political, philosophical or religious belief in the workplace, with the aim of putting in place an entirely neutral administrative environment, does not constitute, with regard to employees who intend to exercise their freedom of religion and conscience through the visible wearing of a sign or an item of clothing with religious connotations, direct discrimination on the grounds of religion or belief, for the purposes of that directive, provided that that provision is applied in a general and undifferentiated way.
(2) Article 2(2)(b) of Directive 2000/78
must be interpreted to mean that a difference of treatment indirectly based on religion or belief arising from a provision of a public body’s terms of employment which prohibits employees from wearing any visible sign of political, philosophical or religious belief in the workplace may be justified by that body’s desire to put in place an entirely neutral administrative environment, provided, first, that that desire responds to a genuine need on the part of that body, which it is for that body to demonstrate; second, that that difference of treatment is appropriate for the purpose of ensuring that that desire is properly realised; and, third, that that prohibition is limited to what is strictly necessary.